| As we all know by now, the U.S. Capitol was stormed by a mob of President Trump’s supporters on Wednesday January 6, 2021. A great deal of the mob, as well as police officers who appeared to stand aside as rioters streamed inside, were captured on video and replayed repeatedly over the news. This includes two Canadian nurses who allegedly travelled to Washington D.C. to participate in an anti-lockdown event which preceded the Capitol Hill riot. Those nurses are now under investigation by the Ontario College of Nurses. This series of events and the footage of the rioters raise some important questions from employers. Given the fact that almost everyone has a camera on them and can, and most likely will, post what they capture on social media, it is a good time to review when employees can be disciplined or discharged for off-duty conduct.
Quite recently, both labour arbitrators and the BC Supreme Court have reviewed principles with respect to discipline for off-duty conduct in the unionized setting, from which all employers can take guidance.
In 2018, the BC Supreme Court (in Klonteig v. West Kelowna (District), 2018 BCSC 124) had occasion to consider whether an employer had cause to dismiss a senior employee after he received a driving suspension for suspected impaired driving. The court found the employer did not have cause and awarded damages for wrongful dismissal. The court in that case accepted that, in some cases, conduct which occurs off-duty may amount to cause, but that the conduct must be or be likely to be prejudicial to the interests or reputation of the employer. In the case in question, the employee was not representing his employer when he engaged in the conduct that led to the suspension of his license. The vehicle he was driving, even though it belonged to the employer, was unmarked as such. There was no public knowledge of the employee’s administrative suspension. Further, the court went on to say that the conduct in question “was not of the same moral reprehensibility as the possession of child pornography and the attendant extensive publicity… or the consorting with a prostitute on company premises and potential breach of privacy…or the dishonest tax scheme engaged in by a chartered accountant and manager of internal audit at a hospital.” Accordingly, the court’s view of the employee’s moral culpability, as well as the public knowledge and reputational harm to the employer for off-duty conduct will be key to establishing whether cause for dismissal can be established.
In the unionized context, labour arbitrators have taken a similar approach to determining whether off-duty conduct warrants discharge. This approach is summarized in the leading text of Brown & Beatty:
...in order to justify its decision to discipline an employee for reason of his or her off-duty conduct away from its premises or the workplace, the onus is on the employer to establish that a connection or nexus exists between the conduct in question and the employment relationship. There must be a real causal connection between the conduct and the employer's general business in order to support discipline.
This principle was reviewed and confirmed by both Arbitrators Hall and Saunders in the summer of 2020. [1]
Accordingly, the takeaway from both the BC Supreme Court and labour arbitration cases is that employers cannot regulate employee activities away from the workplace unless the conduct adversely affects a substantial and legitimate business interest, including reputational harm to the employer, which may be made by a connection through a social media post identifying the employee as a representative of the employer’s business.
If you have any questions regarding the termination of an employee, please contact a member of our Labour, Employment & Human Rights Group.
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